M.E.H v. M.E.H

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, Docket No. FV-18-198-11.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 26, 2011

Before Judges A. A. Rodriguez and Sabatino.

M.E.H. (Wife) appeals from the August 19, 2010 order dismissing her domestic violence complaint against M.E.H. (Husband), and dismissing a Temporary Restraining Order (TRO) previously entered because the Court determined that the "allegation of domestic violence has not been substantiated." We reverse.

Wife obtained a TRO against Husband from Judge Thomas H. Dilts. However, at a subsequent hearing, the order under appeal was entered by a different judge. Wife was represented by counsel and Husband acted pro se. At the hearing, it was undisputed that Wife and Husband were contemporaneously in the process of divorcing after several years of marriage. The parties had twin children, and Husband has a son from a previous marriage. In early 2009, Husband moved to Syracuse, New York with his son. Wife and the twins remained in the marital home. After Wife filed for divorce, Husband returned to the marital home with his son. At that point, the parties slept on different levels of the home. Around this time, the marital home went into foreclosure.

At the FRO hearing, Wife testified that on July 28, 2010, Husband repeatedly called her "sick, mentally unstable, and [her] parents' puppet" in front of the children. The next day, when she returned home from work, Husband told her the electric company had threatened to turn off the electricity. In front of the children and their friends, Husband told wife that she was to blame for the electric company's threat. Wife left the room and went to sleep in the guest bedroom that night. She locked the door. Somehow, Husband appeared in her room at 11:00 p.m. that night. Husband slapped her, either open-handed or backhanded, across the face. Wife was so stunned that she did not recall feeling any actual physical pain. Husband told her to call the police and exited the room. Wife locked the door and turned on a tape recorder. Husband entered the locked guest bedroom again. As heard on the tape recording, she asked Husband numerous times to leave her alone. According to Wife, he remained in the room. Wife did not call the police that night. Instead, she applied for a TRO the next day.

Wife testified to various instances of Husband's prior harassment. One morning, Husband sat on Wife's car, refusing to move because he believed she took his computer. Husband contacted wife through "probably 300 e-mails" after the TRO, including an e-mail asking wife for sex. Wife believed Husband's conduct was in a "process of escalation." After a wage garnishment was ordered against Husband, he told Wife that this was the last straw and that she would pay. He maintained that his statement solely addressed finances and should not be construed threateningly. Wife also recalled an incident a few years prior when Husband threw a clock radio that hit the wall.

Husband testified that on the night of the alleged assault, he walked down the hall past the guest room when Wife engaged him in conversation. He claimed he was in the hallway for the entire exchange. The tape recorded a different conversation, an argument between the parties, during which Wife accuses Husband of hitting her. He twice responds "I didn't hit you. I hit you." The transcript provided in Wife's appendix has periods at the end of these statements. However, when Husband read the transcript at the hearing, the court reporter noted the questioning inflection in his voice when he stated: "I hit you."

At the beginning of the recorded conversation, Husband apologizes. He later stated that he did not apologize for allegedly slapping Wife, but rather for engaging in an upsetting and emotional discussion.

Although the judge concluded Husband assaulted and harassed Wife, he denied and dismissed Wife's request for an FRO. The judge said:

The court makes the following findings of [fact]: One. The ...

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